अखिल भारत हिन्‍दू महासभा की ऐतिहासिक विजय

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WP (C) Nos.4323/2012 & 4432/2012 Page 1 of 11

 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 11.10.2012 Date of Decision: 19.10.2012 + WP (C) No.4323 of 2012 COURT ON ITS MOTION ..... Petitioner Versus GOVT. OF NCT OF DELHI & ORS. ..... Respondents + WP (C) No.4432 of 2012 SS SAI BABA OM JEE @ SS OMJI & ORS. ..... Petitioners Versus SHOAIB IQBAL & ORS. ..... Respondents Through: Mr. Aman Lekhi, Sr. Adv. with Mr. Barun Kumar, Mr. B.S. Shukla, Ms. Monika Arora & Mr. Amit J., Advs. for Petitioner in WP(C) 4323/2012. Mr. Pawan Sharma, Standing Counsel (Crl.) for the GNCTD with Mr. Sahil Mongia, Ms. Priyanka Kapoor, Ms. Richa Sharma, Advs. for Government of NCT of Delhi/ applicant in CM No.10221/2012-Addl. C.P. in WP(C) 4323/2012. Mr. K.T.S. Tulsi, Sr. Adv. with Mr. M.M. Kashyap, Mr. Ravinder Singh & Mr. Faraz Khan, Advs. for applicant Shoaib Iqbal in CM No.10222/2012 in WP(C) 4323/2012. Petitioners S.S. Saibaba Om Jee, Baba Nand Kishor Mishra, Sardar Ravi Ranjan Singh-in person in WP(C) 4432/2012. Mr. Narender Kalra, Adv. for the Applicant in CM No.16319/2012 in WP (C) No.4323/2012. Mr. Chetan Sharma, Sr. Adv. with Mr. Ajay Arora, Mr. Kapil Datta, Advs. for MCD along with Mr. C.R. Garg, DC (City Zone), Mr. Anil Gupta, CLO (NDMC), Mr. Rajiv Garg, ALO (NDMC) for MCD. Mr. Jayant Tripathi, Mr. A.D.N. Rao, Ms. Neelam Jain & Ms. Mansha Monga, Advs. for ASI. _____________________________________________________________________________________________________ WP (C) Nos.4323/2012 & 4432/2012 Page 2 of 11

CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE RAJIV SHAKDHER HON'BLE MR. JUSTICE M.L. MEHTA BY THE COURT CM No.10221/2012 (under Section 151 CPC by Delhi Police) in WP (C) No.4323/2012

1. The Delhi Police seeks modification of the order dated 30.7.2012 whereby the direction made vide para 34 (v) requires police assistance to be rendered to MCD [now North Delhi Municipal Corporation (for short „NDMC‟)] for implementing the statutory mandate without fail. A further direction is sought that the unauthorized construction/obstruction/nuisance at the site of Subhash Park should be directed to be removed by Shri Shoaib Iqbal.

2. In view of our order dated 30.7.2012, the Deputy Commissioner, NDMC vide letter dated 31.7.2012 sought police force so that necessary arrangement could be made. On consideration of the letter, the Delhi Police formed its opinion that since it was the holy month of Ramzan, which will culminate on 20-21.8.2012 and Independence Day celebrations are approaching as also the booking of Ramlila Ground by Baba Ramdev and his team, it may become difficult for the Delhi Police to spare personnel/force. A postponement of action, thus, was sought.

3. It has also been alleged that in view of Section 20A (2) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as the „said Act‟) no person, other than an archaeological officer, shall carry out any construction in any prohibited area. Shri Shoaib Iqbal, MLA (not of the area concerned) had spearheaded the construction and, thus, a direction should be made to him under Section 133 of the Code of Criminal Procedure,

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1973 for removal of obstruction/nuisance.

4. On examination of the averments in the application, to a large extent the application has become infructuous. This is so as the reasons stated for delay in action no more exist as those events are over. However, as far as issuance of directions to Shri Shoaib Iqbal is concerned, while during the initial hearings on this application and his applications a portrayal was made that he was in the forefront of the construction activity, an ambivalent stand was taken subsequently as it was stated that Mr. Shoaib Iqbal should not be asked to make any admission as it would affect any criminal case which may be pending against him.

5. In our view, it is the bounden duty of the Delhi Police to ensure that peace is maintained and yet law of the land is not breached holding out threats of possible repercussions.

6. Mr. Aman Lekhi, learned senior counsel has rightly drawn our attention to certain observations made in Mohd. Aslam @ Bhure, Acchan Rizvi Vs. Union of India, State of Uttar Pradesh & Ors. (1994) 6 SCC 442 which in turn had relied upon the words of Justice Frankfurter. We consider it appropriate to extract the relevant passages as under:

“12. But it is necessary to say that in a Government of laws and not of men the Executive Branch of Government bears a grave responsibility for upholding and obeying judicial orders. It is perhaps worthwhile recalling what the Supreme Court of United States observed in William G. Cooper, Member of the Board of Directors of the Little Rock v. John Aaron 358 US.1 where, in his concurring opinion Justice Frankfurter said: The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? _____________________________________________________________________________________________________ WP (C) Nos.4323/2012 & 4432/2012 Page 4 of 11

The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. Compliance with decision of this Curt, as the constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years. Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways, and means to surmount difficulties that may appear to be insurmountable. 13. Dicey, in his Law of the Constitution, (10th Edition p. 193-94) said:

When we speak of the 'rule of law' as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character _____________________________________________________________________________________________________ WP (C) Nos.4323/2012 & 4432/2012 Page 5 of 11

but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. 14. In these formative years of our nation building, it is more important than even to recognise that in a pluralist society law is the greatest and the only integrating factor. Respect for law and its institutions is the only assurance that can hold a pluralist nation together. Any attempt to achieve solutions of controversies, however, ideologically and emotionally surcharged, not on the basis of law and through judicial institutions but on the strength of number will subvert the fundamental values of our chosen political organisation. It will demolish public faith in the accepted constitutional institutions and weaken people's resolve to solve issues by peaceful means. It will destroy respect for the Rule of Law and the authority of Courts and seek to place individual authority and strength of number above the wisdom of law. This is courting disaster, fratricidal wars, civil commotion, disruption of everything that we hold sacred. The highest cherished value of our nationhood which is tolerance will be distorted by such misguided enthusiasm.” (emphasis supplied)

7. We cannot put it in better words.

8. The application is accordingly dismissed.

CM No.10222/2012 & CM No.11099/2012 (for directions by Mr. Shoaib Iqbal) in WP (C) No.4323/2012

9. The applicant who is an MLA of the adjacent area and is alleged to have been in the forefront of construction of the unauthorized construction has filed these applications seeking directions.

10. In the first application, a prayer has been made to constitute a committee of eminent citizens to assist Archaeological Survey of India (for short „ASI‟) to fairly discharge its duties under the said Act. The second prayer is for a Local Commissioner to visit the site. The third prayer is to direct maintenance of status quo with no

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coercive action as regards existence of structure. The fourth prayer is to array the applicant as a respondent while the last prayer is to similarly array Delhi Metro Rail Corporation. These are prayers made in CM No.10222/2012.

11. In the application the applicant has, once again, tried to sketch out the history of the Akbarabadi Mosque. He has emphasized that he played the role of a peacemaker and that the issue of Akbarabadi Mosque has been raised a number of times.

12. We have already examined all these issues in our order dated 30.7.2012 which needs no reconsideration. The ASI is already looking into the veracity of the claims and the counter claims. This is a technical job. There is no reason to doubt the objectivity or competency of the ASI. Thus, at least, at present there is no need for having a super-committee of citizens to overlook the task being carried out by the ASI nor is there any requirement of a Local Commissioner to take photographs as the ASI is doing the needful.

13. Prayer (c) in the application seeks to, in fact, negate the direction passed in para 34 (v) of the order dated 30.7.2012. There is no error apparent on the face of the record for recall of that direction. The construction has been made taking advantage of the prevalent position by encroaching on public land. The prescribed user is a park for that area. It has also been pointed out to us that the area forms a part of the Jama Masjid Redevelopment Plan which seeks to restore the area to its original glory.

14. The Places of Worship (Special Provisions) Act, 1991, would in no manner assist the applicant as it makes a reference to the religious character of places of worship existing on 15.8.1947 and for the same not to be changed. As noticed above, in the present case the area was a park.

15. One further aspect urged by learned counsel is that he has objections

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to Mr. Aman Lekhi, senior advocate appearing in robes. This plea arises out of a complete misconception as if the petition was filed by Mr. Aman Lekhi in person. All that Mr. Aman Lekhi did was to bring a particular aspect to the notice of the Court which had resulted in initiation of suo moto proceedings by the Court. Thus, this plea is without any basis.

16. We, thus, find no merit in this application.

17. CM No.11099/2012 in effect seeks a further relief of modification of the order dated 30.7.2012 by permitting muslim community to hold namaz as per religious tradition. Once again, in this application a reference has been made to certain historical treaties to claim the existence of Akabarabadi Mosque. The veracity of what has been found at site is a task which is assigned to the ASI. The area has been cordoned off so that unhindered work can be carried out by the ASI. Even ultimately if a monument is found it will be a protected monument. It is not a monument where namaz was being rendered regularly as, in fact, there was no structure but only a park. There can be, thus, no question of permitting any namaz at the site.

18. We may notice that the ASI had issued a notice dated 19.7.2012 to the Deputy Commissioner, MCD to remove the unauthorized construction within fifteen (15) days of receipt of notice as the construction had been raised in a regulated area without permission of the competent authority(ies). We put a specific query to learned counsel appearing for the ASI as to whether the unauthorized construction would have to be removed for it to complete its investigation/survey. Learned counsel stated that at present the survey was being done but when excavation has to take place unhindered access is required and the unauthorized construction would have to be removed. In any case, the notice dated 19.7.2012 of the ASI has not been recalled. In fact, the MCD has requested for

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police assistance to carry out its statutory obligations.

19. We may notice in the end that the arguments on this application were heard on 11.10.2012. Learned counsel on record made the submissions in opening and we heard all the parties. It is thereafter that Mr. K.T.S. Tulsi, learned senior advocate sought to further argue the case of Mr. Shoaib Iqbal. We informed him that this was not permissible as the arguments on behalf of Mr. Shoaib Iqbal had already been heard. He thereafter stated that he would like to argue the matter in the rejoinder, which could also not be permitted as the counsel who has made the submissions in the opening could have only made submissions, in rejoinder, having fully heard the other side. Accordingly, we permitted the counsel on record to make submission in rejoinder. At the instance of Mr. K.T.S. Tulsi learned senior counsel, we recorded this fact in the order dated 11.10.2012.

20. We are pained to note that a recent practice has developed where some senior counsels appear and disappear at their will even when arguments are in progress. It is not understood as to how the arguments of the other side can be rebutted or appropriate submissions made in this manner. A senior advocate is to assist in evolving the law and providing assistance to the Court in all manner for administration of justice. Since his vakalatnama is not on record he may or may not be available on a particular date to assist the Court as that is an arrangement between the counsel on record and the senior counsel. However, if a counsel has chosen to be elsewhere and not appear in the opening submissions nor heard what is urged by the others there is no reason why in the rejoinder he should be heard for the first time and that too to expand the scope of arguments. In effect that is what Mr. K.T.S. Tulsi, learned senior advocate was pleading to do. We say no further.

21. The applications (CM No.10222/2012 & CM No.11099/2012) being

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devoid of any merit are dismissed qua the prayers except to hear Mr. Shoaib Iqbal since we have heard him in the matter.

CM No.9572/2012 (for directions under Section 151 CPC by Mr. Shoaib Iqbal) in WP (C) No.4323/2012

22. The application was moved at an earlier stage prior to the order dated 30.7.2012 and, thus, does not survive for consideration in view of the directions passed in that order.

23. Application stands disposed of.

CM No.11515/2012 (for directions by Mr. S.S. Sai Baba Omjee) in WP (C) No.4323/2012

24. The applicant prays for direction to the police and other authorities seeking compliance of the order dated 30.7.2012 and that too in the presence of the applicant as also to allow hearing to him as in his view he had not been heard adequately.

25. As noticed above, we have heard Mr. Shoaib Iqbal and have also heard the applicant herein who will be heard at the appropriate stages of the hearing.

26. As far as compliance of the directions contained in the order dated 30.7.2012 is concerned, the authorities are duty bound to implement the same but the presence of the applicant is certainly not required to ensure compliance of the order.

27. The application accordingly stands disposed of.

CM No.16319/2012 (for intervention by Mahant (Mr.) Naval Kishore) in WP (C) No.4323/2012

28. This is an application seeking intervention in the matter by Mahant (Mr.) Naval Kishore as General Secretary of the Delhi Sant Maha Mandal. We have heard him in respect of the controversy in question and, thus, no further directions are required.

29. Application stands disposed of.

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CM No.17165/2012 (for Directions by the NDMC) in WP (C) No.4323/2012

30. This application has been filed by the NDMC seeking police assistance to carry out the mandate of the order dated 30.7.2012. We have dismissed the application (CM No.10221/2012) filed by Delhi Police. The sequitur is that Delhi Police will have to make necessary arrangement for the NDMC to carry out its task under para 34 (v) of the order dated 30.7.2012 and the statutory mandate be carried out under the supervision of the ASI who is in control of the area.

31. The application accordingly stands disposed of.

CM No.10604/2012 (for directions by the petitioner) in WP (C) No.4432/2012

32. In view of the directions passed today as aforesaid the application has become infructuous as the statutory mandate has to be carried out without fail and expeditiously as already enough time has expired and the mandate has not been carried out.

33. Thus, the application accordingly stands disposed of.

CM No.11109/2012 (for directions by the petitioner) in WP (C) No.4432/2012

34. We are not inclined to grant reliefs as claimed for in this application which seeks to put a restriction on propounding the respective perspectives or Press reporting the same. We would, however, expect the Press to always conduct itself with responsibility.

35. Dismissed.

CM Nos.11111/2012, 11514/2012 (for Directions to provide security to the Petitioner); & CM No.11851/2012 (for Directions to arrest Mr. Shoaib Iqbal by the Petitioner) in WP (C) No.4432/2012

36. Once again, in effect the order dated 30.7.2012 is sought to be implemented including mandate contained in paras 34 (v) & 34 (vii) of the order. We expect the Delhi Police and other authorities to comply with this mandate forthwith.

37. Insofar as the personal security of the applicant is concerned, the concerned department of the Delhi Police may examine the claim of

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the petitioner for necessary action.

38. Applications stand disposed of.

SANJAY KISHAN KAUL, J. RAJIV SHAKDHER, J. OCTOBER 19, 2012 M.L. MEHTA, J. b’nesh